Citation Nr: 21074725 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-14 753 DATE: December 16, 2021 ORDER Entitlement to service connection for malignant melanoma, to include as being due to herbicide agent, sun, and/or jet fuel/fume exposure and/or a metastasis of prostate cancer, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's malignant melanoma was incurred in or is otherwise related to his period of active duty, to include herbicide agent, sun, and/or jet fuel/fume exposure, was manifested within one year of service discharge, or is a metastasis of service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection for malignant melanoma, to include as due to herbicide agent, sun, and/or jet fuel/fume exposure and/or as a metastasis of prostate cancer, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1970. The Veteran had a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing has been associated with the claims file. This matter was previously denied by the Board in a January 2020 decision. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Veteran and the Secretary of VA (parties) entered into a Joint Motion for Remand (Joint Motion), vacating and remanding the January 2020 Board decision because they determined the Board had failed to provide an adequate statement of reasons or bases for its denial. Specifically, although the Board conceded that the Veteran had sun exposure during service, it denied the Veteran's claim for service connection for malignant melanoma, to include as being due to sun exposure, based on the high probative value it assigned to a February 2016 VA medical opinion. The parties stated that the Board did not address the adequacy of the February 2016 opinion, in light of the instructions provided to the examiner. The parties found that the Board's concession of in-service sun exposure was contradicted by the VA examiner's finding that "service treatment records do not establish a record of excessive sun exposure as there is no treatment for sunburns in service." Additionally, the February 2016 VA examiner noted that a systematic review of studies on melanoma "found the strongest association for intermittent exposure and sunburn in adolescence or childhood." However, the examiner did not relate this study to the facts of the Veteran's case, to include that the Veteran was 18 years old while in service. Pursuant to the Joint Motion, the Board remanded the claim in September 2021 to obtain an updated VA examination opinion that contemplates the issues raised by the Joint Motion. This examination was provided in October 2021. The Board finds there has been substantial compliance with the September 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). At the August 2019 hearing, the Veteran contended that his malignant melanoma was the result of in-service sun exposure while serving in Thailand and New Mexico. The Veteran testified that he worked on the flight line under constant sunlight as an aircraft mechanic in both Thailand and New Mexico. The Veteran testified that he completed training for augmented police in a defoliated area of the jungle in Thailand where he was exposed to constant sun. The Veteran testified that he had limited sun exposure post service. The Veteran stated he shoots archery one day per week at night in a closed facility, and he participates in one outdoor archery competition in June, where he is primarily sitting in a tent with short excursions outside the tent to shoot arrows. The Veteran testified that he rides bikes with his grandson every Sunday, but he noted that the bike trail is well-shaded by trees that are 40, 50 feet high. In a July 2021 statement, the Veteran indicated that his outdoor activities since his time in service were completed with a shirt on, without sun exposure to his back. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including cancer, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. If a veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service connected even if there is no in-service record of the disease in service. 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for malignant melanoma. The reasons follow. Initially, the Board notes that the Veteran is service connected for residuals of prostate cancer as being due to Agent Orange exposure. Thus, the Board concedes that the Veteran had herbicide agent exposure. However, malignant melanoma is not one of the diseases listed in 38 C.F.R. § 3.309(e); therefore, presumptive service connection on this basis cannot be granted. The Board will consider whether direct or presumptive service connection based on a chronic disease is warranted. As to evidence of a current disability, an August 2011 VA treatment record shows that the Veteran was diagnosed with malignant melanoma. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records show that the Veteran was treated for intertrigo, a skin condition, in August 1968. Additionally, as noted above, the Board concedes that the Veteran had herbicide agent exposure during service. It also concedes that the Veteran had both sun and jet fuel exposure during service. Thus, the facts establish that the second element of a service-connection claim is met. Regarding issues raised in the Joint Motion, as discussed above, the Board notes that while it has conceded the Veteran's in-service sun exposure, such a concession does not equate to a finding of excessive sun exposure. However, the Board finds the preponderance of the evidence is against a nexus between the current disability and service. For example, a flight training Report of Medical Examination from October 1968 shows that clinically evaluation of the Veteran's skin was normal. The August 1970 discharge Report of Medical Examination also shows that clinical evaluation of the Veteran's skin was normal. There are both positive and negative medical opinions regarding the relationship between the Veteran's malignant melanoma and service. For example, in an August 2011 letter, Dr. Elliot Levine opined that the Veteran's malignant melanoma was "probably related" to his exposure to Agent Orange. Dr. Levine stated that the Veteran worked on aircrafts in the Philippines, and that the Veteran had reported he trained in a defoliated area within Vietnam and in Thailand. In an August 2011 letter, a VA oncologist opined that the Veteran "probably developed his skin cancer more likely than not" from exposure to the sun during the Veteran's four years of service in Vietnam, Thailand, and New Mexico. Finally, in a June 2014 letter, Dr. Julia Schaefer-Cutillo opined that the Veteran's exposure to fumes, Agent Orange, and sun directly contributed to his development of malignant melanoma. While each of these medical professionals provided positive opinions between the current diagnosis of malignant melanoma and exposures that the Veteran had during service, none of these medical professionals provided a rationale for their conclusions. Medical opinions that do not include an explanation for such opinion have no probative value. In May 2021, Dr. Schaefer-Cutillo submitted another statement including an opinion that the Veteran's "persistent and relentless exposure to the sun during his long hours working on aircraft for the military are a direct contributor to the development of melanoma. She wrote that the Veteran did not have "any sun exposure throughout the rest of his life" and did not do any activities associated with sun exposure. She requested that the Veteran's condition be classified as service connected. However, to the extent that this statement qualifies as an opinion, the Board finds Dr. Shaefer-Cutillo's opinion to be unpersuasive, as it is premised on the assumption that the Veteran has had no sun exposure in the last 51 years, which, on its face, is not credible. For example, as noted, the Veteran has reported routine outdoor bike rides. Separate treatment records also have described the Veteran as an "avid hunter" and listed the Veteran's recreational activities to include "Fishing" and "Parks." Even when performed primarily in shaded areas, such activities would be associated with some sun exposure. This sweeping conclusion is simply not supported by the longitudinal evidence of record. This opinion is not probative, as it does not consider any other sun exposure in the Veteran's life outside of his time in-service, contrary to the totality of the evidence. In other words, the opinion is based on an inaccurate factual premise, and an opinion based on inaccurate factual premise is not probative. In a February 2016 VA examination report, the examiner concluded that the Veteran's malignant melanoma was less likely than not incurred in or caused by the claimed exposures to herbicides, jet fuel/fumes, and/or sun. The VA examiner explained that the Veteran had several clinically significant, well-established risk factors for developing malignant melanoma on his back, including, but not limited to: Caucasian race, male gender, age greater than 60 at the time of diagnosis, and atypical nevi. The VA examiner connected the Veteran's malignant melanoma to cumulative life-time, extensive sun exposure and not just his four years of military service. The VA examiner opined that a review of evidence-based medical literature did not support a contention of malignant melanoma being caused by Agent Orange or jet fuel/fumes. The parties to the Joint Motion found the 2016 examiner's rationale to be deficient, and, pursuant to the Board's September 2021 remand, the Veteran underwent a new VA examination in October 2021. The examiner documented the Veteran's history of melanoma and stated that the Veteran has had no demonstrated recurrent or metastatic disease. The examiner stated that the claimed melanoma is less likely than not due to the Veteran's service. In his rationale, the examiner noted that the Veteran served from 1966 to 1970 (age 18-22 years of age). The examiner stated that the Veteran previously presented a Harvard study showing "sun exposure prior to 20 years of age is more closely associated with melanoma risk than sun exposure after 30 years of age." The examiner noted the Veteran had 18 years of sun exposure before the age of 20 outside of active duty. The examiner stated that the Veteran's 18 years prior to service would be more significant not just due to it being nine times the number of years, but by the Harvard study's findings, one may expect that the sensitivity to the sun may be even greater at a younger age (e.g. as a baby/toddler/child). The examiner added that sunscreen (SPF) products were not released until the 1960s, and, at that time, were not widely used, had an SPF of just two to four (products today can easily be over 50 SPF), and were "often thick, oily, and did not effectively rub into the skin," citing to a research article from the University of Utah. The examiner stated that, although the Veteran also served from age 20 to 22, he then had another eight years before the age of 30 with sun exposure outside of the military. The examiner noted that the Veteran was ultimately diagnosed with melanoma in 2011 at the of 63, which means that he had another 33 years of sun exposure prior to his diagnosis. The examiner wrote that given that the Veteran had two years of active duty period prior to the age of 20 (vs. 18 years outside), two years of active duty after age 20 but before the age of 30 (vs. eight years outside of active duty during this time), and then another 33 years of sun exposure prior to his ultimate diagnosis in 2011, the examiner found it is less likely than not that the melanoma is connected to service. The Board finds this opinion to be probative, as the examiner provided an explanation for the conclusion reached, which was supported by the evidence in the file and medical literature. This opinion addressed the issues raised in the Joint Motion, as the examiner directly addressed the study provided by the Veteran while acknowledging and discussing the Veteran's in-service sun exposure. The December 2012 VA examiner found that the Veteran's malignant melanoma was less likely than not a metastasis of the Veteran's service-connected prostate cancer. The VA examiner opined that prostate cancer most frequently metastasizes to the bones, lung, and liver, and that the skin is very rarely a site for metastasis. This is evidence against the service-connected residuals of prostate cancer being the cause of the malignant melanoma. There is no competent evidence to weigh against this medical opinion. The Board is aware that the Veteran has alleged that he experienced a lot of sun exposure during his four years in service, which the Board concedes. However, the Veteran then had decades (40 years) of sun exposure in the years following service discharge, as well as 18 years preceding his entry into service. The implication that the four years of sun exposure in service being his primary sun exposure versus the more than 50 years that preceded and followed his service, is not supported by the weight of the evidence. Examination reports note that skin cancer is due to cumulative lifetime sun exposure, only a fraction of which was incurred during the Veteran's period of active duty, during which time, the Veteran's service treatment records show no reports of or treatment for sunburns. The Veteran was noted to have a number of separate, clinically significant, well-established risk factors for melanoma at the time of his 2011 diagnosis. The record also indicates that the Veteran was an avid outdoorsman in the years following service, which supports the finding that the Veteran had a lot of sun exposure following service discharge. As such, the preponderance of the evidence is against an award of service connection herein. Furthermore, malignant melanoma was not diagnosed until 2011, which is well over the one-year presumption period for a chronic disease. Thus, presumptive service connection based on a chronic disease is not warranted. The Board acknowledges the Veteran's claim that he has always worn a shirt outdoors since service; however, the expert opinions of record demonstrate that it is the cumulative sun exposure that is most relevant to the etiology of the Veteran's condition. While the Veteran alleges a nexus through his own lay assertions that his malignant melanoma is related to his in-service herbicide agent, sun, and/or jet fuel/fumes exposure, he is not competent to offer opinions as to the etiology of malignant melanoma. Malignant melanoma requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. Therefore, the Veteran's opinion is nonprobative evidence. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for malignant melanoma, to include as being due to exposures to herbicides, the sun, and/or jet fuel exposure or as a metastasis of the residuals of prostate cancer. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.